Misbehavior before the enemy. UCMJ Art. 99

Enemy Defined

test1 087 (Side 87)Organized forces in time of war or any hostile body, including civilians, that may oppose U.S. forces. United States v. Monday , 36 C.M.R. 711 (A.B.R. 1966), pet. denied , 37 C.M.R. 471 (C.M.A. 1969).

Before The Enemy

  1. A question of tactical relation not of distance. A reasonable possibility of being called into action is sufficient. United States v. Sperland , 5 C.M.R. 89 (C.M.A. 1952).
  2. Subsequent enemy contact may not be used to establish misconduct before the enemy. United States v. Terry , 36 C.M.R. 756 (N.B.R. 1965), aff’d , 36 C.M.R. 348 (C.M.A. 1966).

Nine Forms of the Offense

  1. Running away.
  2. Shamefully abandoning, surrendering, or delivering up command, unit, place, ship or military property.
  3. Endangering safety.
  4. Casting away arms or ammunition.
  5. Cowardly conduct.
  6. Quitting place of duty to plunder or pillage.
  7. Causing false alarms.
  8. Willfully failing to do utmost to encounter the enemy.
  9. Failure to afford relief and assistance.

Elements

Each form has its own set of elements. An example, Article 99(5), is below:

  1. That the accused committed an act of cowardice;
  2. That this conduct occurred while the accused was before the enemy; and
  3. That this conduct was the result of fear.

Applications

  1. test1 095 (Side 95)Cowardice is misbehavior motivated by fear. Fear is the natural feeling of apprehension when going into battle. United States v. Smith , 7 C.M.R. 73 (C.M.A. 1953).
  2. The mere display of apprehension does not constitute the offense. United States v.Barnett , 3 C.M.R. 248 (A.B.R. 1951).
  3. An intent to avoid combat does not in itself justify an inference of fear. United Statesv. Yarborough , 5 C.M.R. 106 (C.M.A. 1952).
  4. Refusal to proceed against the enemy because of illness is not cowardice unless motivated by fear. United States v. Presley , 40 C.M.R. 186 (C.M.A. 1969).
  5. Article 99 covers the area of misbehavior before the enemy offenses. Art. 134 is not a catch-all. United States v. Hamilton , 15 C.M.R. 383 (C.M.A. 1954).

Before The Enemy

UCMJ Art. 99